Maine, Henry Sumner
Maine, Henry Sumner
Sir Henry Sumner Maine (1822–1888) was a lecturer on jurisprudence at Oxford and Cambridge, the founder of anthropological jurisprudence as an aspect of comparative law, a legal historian, and a colonial statesman. His enduring contribution to the social sciences is to be found in his formulation of the concept of ideal polar types and its uses in the comparative analysis of social phenomena.
Status and contract . In his works, especially in Ancient Law (1861), Maine contrasted early societies in which social relations are dominated by status with “progressive” (complex) societies in which social relations are predominantly determined by contract. By status Maine meant “a condition of society in which all the relations of Persons are summed up in the relations of Family” ( 1960, p. 99). These relations are ascribed to the individual as a member of a kinship group. By contract Maine meant individual obligation arising “from the free agreement of individuals.”
Although Maine explicitly declared that he could recognize no evidence that proved any society to be entirely destitute of the concept of contract, his major proposition was that in early societies the individual creates few or no rights for himself and few or no duties. Rather, he is subject to the traditional rules that govern his status and to new rules which are issued as commands by the head of his household.
Maine held that the primitive kinship group is patrilineal and autocratic. The commands of the household headman are the authoritative expression of the patria potestas. “In truth, in the primitive view, Relationship is exactly limited by Patria Potestas. Where the Potestas begins, Kinship begins;. .. here we have the reason why the descendants of females are outside the limits of archaic kinship”(ibid., p. 88).
The polar opposite to the patriarchally dominated, kinship-determined condition of status is the kind of social system exemplified by the complex Roman society during the time of Justinian. This kind of system is marked by contract-determined relations wherein the first person promises to perform acts or to observe certain forbearances and wherein a second person signifies his expectation that the first party will fulfill the proffered promise. The mental act of consensus is theoretically separated from the external formality of the ritual of the pact or convention (e.g., in transfers of possessions), and an obligation has been added which receives the full support of legal enforcement. This is true contract.
Maine wrote in the intellectual climate of eighteenth-century and nineteenth-century social evolutionism, and accordingly he set his model in an evolutionary mold. His polar types were designed not only to represent extremes in a range of variable social forms but also to describe development in the dimension of time. Hence the famous formula: “.. . we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract” (ibid., p. 100).
Because Maine worked exclusively with written historical records, his documentation of the evolutionary process was limited almost entirely to the Greco-Roman juridical experience. He judiciously defended this on the grounds that data on other ancient civilizations were scanty or altogether missing and that in any event Roman notions have so permeated most later systems as to preclude comparative study of crucial variations. Maine anticipated the concept of multilinear evolution when he expressed his belief that there can be no theory that accounts universally for the evolution of all social phenomena. Nonetheless, Maine concluded that “it may be reasonably believed that the history of ancient Roman Contracts is, up to a certain point, typical of the history of this class of legal conceptions in other ancient societies” (ibid., p. 199).
In accordance with the concept of multilinear evolution, Maine proceeded to describe the steps by which the transformation from status to contract occurred. The life of ancient man in its earliest phases knew no custom, Maine believed, but was controlled by a regimen of caprice—the commanding judgments of the patriarchal family head or the king. These took the form of themistes —judgments on the individual case under the di- rective of divine inspiration. “.. . It must be distinctly understood,” Maine held, “that they are not laws, but judgments. .. they cannot be supposed to be connected by any thread of principle; they are separate, isolated judgments”(ibid., p. 3).
Subsequently, in the process of social evolution the heroic king lost his sacred power and was politically displaced by a class of aristocrats who were not themselves royalty. In Maine’s account, the early councils of aristocrats, although they abjured the claim to divine inspiration (except in Asia), nonetheless established the claim that they alone knew the body of principles in accordance with which quarrels were to be settled. In short, they became the repositories and administrators of law. Theirs was the “epoch of customary law.”
The next phase, called by Maine the “Era of Codes,” followed the invention of writing. The reduction of law to the written word ended the “spontaneous” growth of law, and all subsequent legal development was the product of deliberate effort to close the gap between changing society and frozen codes.
Maine was not content to assert the idea of social evolution; he undertook to demonstrate evolutionary mechanisms. The instruments of legal change, which permitted the modification of the forms of archaic law and the growth of modern law, were examined by him in great detail, under the rubrics of fictions, equity, and legislation.
Particularly significant is Maine’s treatment of legal fiction, defined as any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged while its operation is modified. Fiction makes legal change possible at a time when it cannot be overtly admitted that change is possible. Maine considered fiction to be a more primitive device than equity, which followed. Equity is distinguished by the fact that there is recourse to a new body of principles which are believed to have universal validity (as in jus gentium and natural law). It exists alongside the pre-existing civil law but supersedes it. The last mechanism of change to be developed was legislation. It differs from all previous sources of law, in Maine’s view, because its obligatory force is independent of its principles. Its authority derives from an external body, existing as fiat.
In early twentieth-century social science, particularly in anthropology, Maine’s theory of comparative law fared rather badly. Although he enjoyed some first-hand knowledge of the village ommunity in India, there are no references in his Ancient Law to contemporary nonliterate tribal society. Maine was content to interpolate a hypothetical state of universal social organization from the materials of ancient Greece and Rome. He had nothing to say about customs and law in any known primitive society.
To the modern social scientist, Maine’s customless society is not only empirically nonexistent but theoretically impossible. It has not been difficult for ethnographers to prove invalid Maine’s assumption of the initial universality of patrilineal, patriarchal social organization, characterized by absolute submergence of the individual within the corporate whole. Of 564 nonliterate societies in G. P. Murdock’s “World Ethnographic Sample” (1957), less than half (44 per cent) are patrilineal, one-third are bilateral, and one-sixth are matrilineal (Aberle 1961, p. 665). The very simplest of these primitive societies tend to be neither patrilineal nor matrilineal. Furthermore, detailed examination of actual primitive systems has demonstrated that the patriarchal authoritarianism of the patria potestas, as it was known in early Rome, is not a common characteristic of primitive patrilineality.
Recent empirical anthropology, following R. H. Lowie (1920), has demonstrated also the extent of nonkinship groupings (clubs, fraternities, voluntary associations) and relationships in primitive society. Anthropologists have thoroughly established that Maine was wrong in his dogmatic assumption that the kin bond was the sole initial basis of political union and that its later subversion by the establishment of local contiguity as the basis of common political action was an antipathetic revolution. Geography as well as kinship is now known to be a more or less important factor in all sociopolitical systems.
Tort and crime. A second major formulation of polar opposites advanced by Maine was the contrast between the law of tort and the law of crime. “If therefore,” he wrote, “the criterion of a delict, wrong, or tort be that the person who suffers it, and not the State, is conceived to be wronged, it may be asserted that in the infancy of jurisprudence the citizen depends for protection against violence or fraud not on the Law of Crime but on the Law of Tort” ( 1960, p. 218). The test is the law of responsibility for initiation and carrying through of legal action; it is a test of procedure. Although there is a good deal more of criminal law in the law of primitive societies than Maine imagined, Maine’s contrast is essentially correct. The general trend of the law, from primitive to
civilized, is toward an increasing shift of procedural responsibility from the individual as a member of a kinship group to the public officer as representative of the society at large.
Maine’s influence In spite of the antievolutionary reaction that almost submerged Maine, along with Lewis Henry Morgan, Tylor, and other social evolutionists of the late nineteenth century, Maine’s working tool of ideal polar types was never wholly lost. Morgan used it to formulate his contrast of societas and civitas. fimile Durkheim used it to contrast the hypothetical isolated society of absolute homogeneity, bound by “mechanical solidarity,” with the interdependent community (“the social organ”) bound by the “organic solidarity” of interrelated, differentiated units. Through Durkheim, and through Tonnies’ contrast of Gemeinschaft and Gesellschaft, Maine’s influence on current French, German, and American sociology is clear.
As anthropology extends its interests beyond the illiterate tribe to the peasant community in the setting of civilization, interest in Maine is being renewed. The folk-urban continuum of Redfield and his followers is Maine’s model with a new content. The extensive study of village communities in India and elsewhere, which burgeoned in the years following World War II, has revived Maine’s work of comparative contrast, Village-communities in the East and West (1871).
In like manner, the current revival of interest in social evolution among anthropologists, as expressed in the writings of V. Gordon Childe, Leslie White, Julian H. Steward, and Marshall Sahlins, lends new vitality to Maine’s work.
Above all, the problem of the economic and social development of recently independent under-developed nations has forced Maine’s basic ideas once more to the fore. Economists, anthropologists, and sociologists have written extensively and emphatically to impress administrators of economic-development programs that African and Asian economic systems function as by-products of noneconomic institutions
The most vigorous response to Maine’s thought, relating to mid-twentieth century interests, is found in the writings of F. S. C. Northrop and his associates. Northrop goes beyond Maine, to hold that the concept of contract is a unique Roman invention, the product of Stoic lawyers creating, in the tradition of Greek mathematics, an imageless, logical-realistic universal concept. He attributes to the concept of contract the same significance for Western politico-legal development that the imageless constructs of Western scientific thought have for technical advancement and considers modernization possible only if status-type social systems are replaced with universal contract relations.
In contrast, such men as Roscoe Pound and Morris Cohen, in their work earlier in this century with reference to trends within Western society, stressed countercontract developments in social and labor legislation that limit individual freedom of contract. Examples are workmen’s compensation and minimum wage acts. Similarly, the standardization of contract terms in landlord—tenant, mortgage, insurance and other contracts is seen by some writers as substituting a group status-determinant for self-determination. Thus, when applied empirically to modern society, Maine’s model is no more adequate than it proved to be when applied to actual primitive societies. In other words, contemporary empiricists have demonstrated that Maine’s concept taken as absolute historical dogma will not stand up in detail; however, this does not mean that it may not be highly useful as a model of ideal types.
E. Adamson Hoebel
[For the historical context of Maine’s work, seeEvolution, article onCultural Evolution; Jurisprudence; Law; Modernization. For discussion of the subsequent development of his ideas, see the biographies ofDurkheim; Pound; Redfield; Tö; Nnies.]
(1861) 1960 Ancient Law: Its Connection With the Early History of Society, and Its Relations to Modern Ideas. Rev. ed. New York: Button; London and Toronto: Dent. → A paperback edition was published in 1963 by Beacon.
(1871) 1890 Village-communities in the East and West, to Which Are Added Other Lectures, Addresses, and Essays. New ed. London: Murray.
(1875) 1897 Lectures on the Early History of Institutions. 7th ed. London: Murray. → A sequel to the author’s Ancient Law.
Aberle, David F. 1961 Matrilineal Descent in Cross-cultural Perspective. Pages 655–727 in David M. Schneider and Kathleen Gough (editors), Matrilineal Kinship. Berkeley: Univ. of California Press.
Bohannan, Paul 1963 Social Anthropology. New York: Holt.
Grant Duff, Mountstuart E. 1892 Sir Henry Maine: A Brief Memoir of His Life. New York: Holt.
Graveson, R. H. 1940/1941 The Movement From Status to Contract. Modern Law Review 4:261–272. HOEBEL, E. ADAMSON 1964 Status and Contract in Primitive Law. Pages 284–294 in F. S. C. Northrop and Helen H. Livingston (editors), Cross-cultural Understanding: Epistemology in Anthropology, New York: Harper.
Lowie, Robert H. (1920) 1947 Primitive Society. New York: Liveright. → A paperback edition was published in 1961 by Harper.
Murdock, George P. 1957 World Ethnographic Sample. American Anthropologist New Series 59:664–687.
Northrop, F. S. C. 1964 Toward a Deductively Formulated and Operationally Verifiable Comparative Cultural Anthropology. Pages 194–222 in F. S. C. Northrop and Helen H. Livingston (editors), Cross-cultural Understanding: Epistemology in Anthropology. New York: Harper.
Redfield, Robert 1955 The Little Community: Viewpoints for the Study of a Human Whole. Univ. of Chicago Press. → A paperback edition was published in 1962.
Seagle, William (1941) 1946 The History of Law. 2d ed. New York: Tudor. → First published as The Quest for Law. See especially pages 252–277 in the 1941 edition, “The Omnipotence of Contract.”
Smith, Joseph C. 1964 The Theoretical Constructs of Western Contractual Law. Pages 254–283 in F. S. C. Northrop and Helen H. Livingston (editors), Cross-cultural Understanding: Epistemology in Anthropology. New York: Harper.
Stone, Julius (1946) 1950 The Province and Function of Law: Law as Logic, Justice, and Social Control; a Study in Jurisprudence. Cambridge, 0Mass.: Harvard Univ. Press. → See especially pages 451–484 on “Social Types and Legal Types.”